This document was originally published by the European Court of Human Rights and can be found here. 

Introduction

A. Methodology

Given the extensive case-law developed by the Convention institutions on the right to freedom of expression, the subject must be approached using a clearly defined methodology.

Before examining the substance of the right protected by Article 10 under its various themes, the Guide first gives a general overview of the applicability of Article 10 of the Convention and the admissibility criteria most frequently developed in cases concerning this provision.

Certain points which deserve particular emphasis with regard to the various stages of the Court’s examination are then explored, before the chapters containing a thematic and detailed analysis of Article 10 of the Convention.

The subsequent theme-based chapters are structured around the various legitimate aims which may justify an interference with the exercise of the right to freedom of expression (Article 10 § 2).

The analysis of each of the legitimate aims varies, depending on the quantity of relevant case-law and the degree of nuance contained therein.

It should be noted that reference is frequently made to more than one legitimate aim in the cases concerning Article 10. In consequence, a case referred to in one thematic chapter may also be relevant for other chapters.

Each section examining a legitimate aim presents the general principles relating in particular to the context of the given aim, and the specific application criteria which emerge from the case-law of the Convention institutions. However, the principles and application criteria are not exclusive to the themes as they have been structured in this Guide; areas of overlap and inter-connection are common throughout the body of case-law under consideration here.

The Guide also contains chapters on certain subject areas which are not specifically mentioned in the text of the Convention, but which the Court has incorporated into the Convention system of protection of the right to freedom of expression, such as pluralism, the right of access to information, protection of whistle-blowers and freedom of expression on the Internet. The structure of these chapters follows the inherent logic of these subject areas as interpreted in the Court’s case-law.

Finally, the Guide reviews the methodologies used by the Court when examining the right to freedom of expression in relation to the other rights guaranteed by the Convention and its Protocols, whether this relationship is one of complementarity or conflict.

B. General Considerations of Article 10

Indissociable from democracy, freedom of expression is enshrined in a number of national, European[1], international and regional[2] instruments which promote this political system, recognised as the only one capable of guaranteeing the protection of human rights. In its interpretation of Article 10 of the Convention, the Court has held that “freedom of expression constitutes one of the essential foundations of [democratic] society, one of the basic conditions for its progress and for the development of every man” (Handyside v. the United Kingdom, § 49).

The Court has emphasised on several occasions the importance of this Article, which is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (Handyside v. the United Kingdom, § 49; Observer and Guardian v. the United Kingdom, § 59).

As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (Stoll v. Switzerland ([GC], § 101, reiterated in Morice v. France ([GC], § 124) and Pentikäinen v. Finland ([GC], § 87).

In addition to those general considerations, the Court has explored in its case-law the States’ positive obligations in protecting the exercise of this right. These positive obligations imply, among other things, that the States are required to establish an effective mechanism for the protection of authors and journalists in order to create a favourable environment for participation in public debate of all those concerned, enabling them to express their opinions and ideas without fear, even if they run counter to those defended by the official authorities or by a significant part of public opinion, or even if they are irritating or shocking to the latter (Dink v. Turkey, § 137; Khadija Ismayilova v. Azerbaijan, § 158).

In consequence, Article 10 of the Convention enjoys a very wide scope, whether with regard to the substance of the ideas and information expressed, or to the form in which they are conveyed.

Citations:

[1] See, for example, Article 11 of the Charter of Fundamental Rights of the European Union (2000), which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected.”

[2] See, for example, Article 13 of the American Convention on Human Rights (1969), Article 19 of the International Covenant on Civil and Political Rights (1966) or Article 9 of the African Charter on Human and Peoples’ Rights (1981).